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October 17, 2008

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Fazal Khan

Paul, I agree that popular representations of the law (whether Dorfman, Kafka, Dostoevsky, or Grisham) likely have a lot more impact on the judiciary than law and literature scholarship. Most of this can be explained by the fact that popular fiction has a much larger intended and actual audience. But I suspect you would counter by asking, what if we measure the success of law and literature scholarship versus law and economics scholarship in influencing the judiciary? Perhaps the lack of traction for law and literature scholarship represents an absence of a clear identity for this field. For instance, when you bring up law and economics, most of the judiciary would be familiar with core concepts and applications of this field. However, if you mention law and literature, there might be some confusion as to whether you mean law as literature, or law in literature. Further, regarding law as literature, there seem to be innumerable analytical techniques discussed in this area. In contrast, there appears to be less diversity of core ideas in the law and economics field, which would make it easier to grasp as a coherent discipline. Thus, the individual scholarship in the law and literature may not be lacking, it just may be the sum total of scholarship in this area is not self-reinforcing nor coherent in the aggregate sense.

Paul, I really enjoyed the posts--I have not been to Hyde Park for a while so please give my regards to Jimmy's and Harold's.

Martha Nussbaum

I'm glad that Paul has put in a plug for literature. We live in an era in which the education debate, in most nations of the world, is cast routinely in terms of profitability in the global market. Nations are urged to cram their students full of technical skills that will allegedly make them better in enriching the nation. Little thought is given to the skills that make democracies both decent and stable.

Children need to learn how to think critically, how to assess the propaganda that politicians bring their way in a Socratic fashion, asking what the argument is based on and whether it really stands up. That sort of teaching also helps young people understand political disagreement in a more mature way: not just as a way of making boasts and scoring points, but as a way of engaging respectfully with people who disagree. These skills (which are associated with the discipline of Philosophy broadly conceived), are fostered pretty well in colleges and universities, but not so well in schools, which increasingly are "teaching to the test," downplaying analytical and critical faculties.

But the imagination is even more neglected. Programs in the arts and humanities are being cut everywhere, if they still exist at all. And here I agree strongly with Heald: the training of imagination they offer is critical to a decent society. Of course works of art need to be selected so as to cultivate the students' ability to understand the experience of minorities. Not all literary works do this. Some (e.g. much hard-core pornography) narrow and warp the imagination, making it less easy for the person to think of the real humanity of a group of people. So I don't think that imagination is a sufficient condition for decent citizenship. I do think, though, that it is necessary, in combination with good political principles. Such abstract principles, I argue in my new book, won't do enough work on their own; people need the ability to see the lives of other people and groups as fully human, fulfilling a wide range of human purposes, or they will all too easily go astray in applying their principles to cases involving stigmatized groups. (Bowers lacked this ability and Lawrence had it.) This ability to see humanity is often assisted by education in literature and the arts, and by exposure to media portrayals of gays and lesbians, though it is assisted, too, by knowing, close-up, real people from the group. Paul is right that the media and the arts have played a major role in the erosion of homophobic prejudice that is currently taking place in our society.

What about Law and Literature scholarship? Paul says it has no influence. Well, most scholarship does not directly influence public policy. It influences policy indirectly, by encouraging policy-makers to pay attention to certain things and not others. One way it could influence policy is to encourage much more humanities teaching in the schools, and the movement's influence in this respect is hard to assess, since so much is working in the opposite direction. Another way it could have an influence would be to remind judges and clerks of what needs attending to. To the extent that law and literature scholarship has led to much more emphasis on the quality of imagination involved in judicial reasoning (one of the main emphases of the movement), it may well have had an indirect influence, encouraging judges to feel that it is all right to bring their experienced imagining of real-world situations into the process of judging. In Poetic Justice (1996), I give a number of examples of decisions that embody this quality, and in my Supreme Court Foreword I contrast decisions that have it with some that lack it. In the older book, Richard Posner, a leading law and literature scholar, is one of my salient (good) examples, in a sexual harassment case. In the more recent work, Justice Breyer is one of my salient (good) examples, and he has long taken a keen interest in scholarship about philosophy and literature. (He was a teaching assistant in a humanities course taught by Stanley Cavell at Harvard, in which Shakespeare was much discussed, and he also took a Cavell course on Hollywood film comedies.) So, the idea of influence, from scholarship about law-philosophy-literature on at least a group of influential individuals cannot be dismissed.

Now it's time to put in a plug. On May 15-16, our Law School will host a conference on Shakespeare and the Law, in order to investigate some of these themes further and give new life to the law and literature movement. Justice Breyer will be our keynote speaker, and papers will also be given by Judge Posner, Judge Diane Wood, and Judge Sack of the Second Circuit -- as well as by law professors, philosophers, and literary scholars. Maybe we'll understand the issues Heald raises far better when we're done.

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